Manotis and Manotis
[2008] FamCAFC 55
•5 May 2008
FAMILY COURT OF AUSTRALIA
| MANOTIS & MANOTIS | [2008] FamCAFC 55 |
| FAMILY LAW - APPEAL – application to extend time to appeal |
| Family Law Act 1975 (Cth) – s 94 Family Law Rules 2004 – Chapter 22 r 22.02, r 22.03 |
| Gallo v Dawson (1990) 93 ALR 479 House v The King (1936) 55 CLR 499 McMahon and McMahon (1976) FLC 90-038 Pierce v Pierce (1999) FLC 92-844 Tormsen and Tormsen (1993) FLC 92-392 |
| APPLICANT: | [Mr Manotis] |
| RESPONDENT: | [Ms Manotis] |
| FILE NUMBER: | PTW | 2347 | of | 2004 |
| APPEAL NUMBER: | WA | 11 | of | 2008 |
| DATE DELIVERED: | 5 May 2008 |
| PLACE DELIVERED: | Perth |
| PLACE HEARD: | Perth |
| JUDGMENT OF: | Martin J |
| HEARING DATE: | 28 April 2008 |
| LOWER COURT JURISDICTION: | Family Court of Western Australia |
| LOWER COURT JUDGMENT DATE: | 23 January 2008 |
| LOWER COURT MNC: | [2008] FCWA 9 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Self represented |
| SOLICITOR FOR THE APPLICANT: |
| COUNSEL FOR THE RESPONDENT: | Mr M Tedeschi |
| SOLICITOR FOR THE RESPONDENT: | Slee Anderson and Pidgeon |
Orders
That the husband’s application to extend time to appeal the orders of the Honourable Justice Penny dated 23 January 2008 be dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Manotis and Manotis is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FAMILY COURT OF AUSTRALIA AT PERTH |
Appeal Number: WA 11 of 2008
File Number: PTW 2347 of 2004
| [Mr Manotis] |
Applicant
And
| [Ms Manotis] |
Respondent
REASONS FOR JUDGMENT
The issue for determination was the husband’s application to extend time to appeal the orders of the Honourable Justice Penny dated 23 January 2008.
The husband’s application filed on 31 March 2008, was filed approximately five weeks out of time.
The husband has been self represented throughout the proceedings. He is an Australian citizen who lives in [south west Western Australia]. The wife was born in [a foreign country]. The parties married in 1998, and separated in April 2003. There is one child of the marriage, [A], now aged eight years. Both parties live in [south west Western Australia] and share the care of the child.
At trial, the only issue relating to the child was whether the wife should be able to take her to [a foreign country] on holiday to visit her family and friends. The husband opposed this, saying that the child should not be able to leave Australia without his consent until [A] is 18 years old as he of the opinion the wife will not return from [the foreign country] if she is allowed to leave with [A]. Her Honour’s orders in this regard, in broad terms, were that the wife should be permitted to take the child on holiday to [the foreign country] for a period of two weeks each year, provided she provides security in the sum of $15,000 before her departure.
The other issue at trial was the wife’s application for settlement of property. At trial, the most significant issue in relation to the property was the extent of the wife’s property interests in [the foreign country]. There was an issue in relation to contributions. The trial Judge’s conclusion on contributions was that, having regard to the husband’s greater initial contributions and her conclusion that contributions by the parties during the marriage were equal, there should be an apportionment of the assets taking into account contributions alone of 70% to the husband, and 30% to the wife. Her Honour concluded that there should be no allowance for s 75(2) factors, for reasons set out at length in her judgment.
On 21 April 2008, the trial Judge ordered the husband pay 75% of the wife’s costs of the proceedings in relation to the issue of property, and 50% of the wife’s costs in relation to the issue of whether the child was able to leave Australia for the purpose of a holiday in [the foreign country].
Relevant Statute Law and Rules
Section 94 of the Family Law Act 1975 (Cth) provides for appeals to the Family Court from courts other than the Federal Magistrates Court or the Magistrates Court of Western Australia constituted by a Family Law Magistrate. Section 94(1A) provides as follows:
An appeal under subsection (1) or (1AA) shall be instituted within the time prescribed by the standard Rules of Court or within such further time as is allowed in accordance with the standard Rules of Court.
Section 94(2D) provides that applications of a procedural nature, including applications for an extension of time within which to institute an appeal under subsection 94(1) or (1AA) may be heard and determined by a Judge of the appeal division or other Judge if there is no Judge of the appeal division available, or by a Full Court of the Family Court. There is presently no Judge of the appeal division available.
Chapter 22 of the Family Law Rules 2004 deals with appeals. Pursuant to r 22.02, an appeal may be commenced by filing a Notice of Appeal. Rule 22.03 provides that the Notice of Appeal must be filed within 28 days after the date the order appealed from was made.
Relevant legal principles – application for leave to appeal out of time
The relevant principles were set out in Gallo v Dawson (1990) 93 ALR 479. It is not automatic for leave to be granted, but involves the exercise of discretion, which is given for the sole purpose of enabling the Court to do justice between the parties. In determining whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the nature of the litigation and the consequences for parties of the grant or refusal of the leave. It also involves an assessment of the prospects of a successful appeal.
The principles relating to an application for an extension of time in which to institute an appeal are referred to in cases such as McMahon and McMahon (1976) FLC 90-038 at 75,144, Tormsen and Tormsen (1993) FLC 92-392 at 80,017 and Gallo v Dawson (supra) at 480-481:
The grant of an extension of time under this rule is not automatic. The object of the rule is to ensure that those Rules which fix times for doing acts do not become instruments of injustice. The discretion to extend time is given for the sole purpose of enabling the court or justice to do justice between the parties: see Hughes v National Trustees Executors & Agency Co of Australasia Ltd[1978] VR 257 at 262. This means that the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant. In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time: see Avery v No 2 Public Service Appeal Board[1973] 2 NZLR 86 at 92; Jess v Scott (1986) 12 FCR 187 at 194-5 ; 70 ALR 185. When the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospects of the applicant succeeding in the appeal: see Burns v Grigg[1967] VR 871 at 872; Hughes, at 263‑4; Mitchelson v Mitchelson(1979) 24 ALR 522 at 524. It is also necessary to bear in mind in such an application that, upon the expiry of the time for appealing, the respondent has “a vested right to retain the judgment” unless the application is granted: Vilenius v Heinegar (1962) 36 ALJR 200 at 201. It follows that, before the applicant can succeed in this application, there must be material upon which I can be satisfied that to refuse the application would constitute an injustice. As the Judicial Committee of the Privy Council pointed out in Ratnam v Cumarasamy [1965] 1 WLR 8 at 12; [1964] 3 All ER 933 at 935:
“The rules of court must prima facie be obeyed, and in order to justify a court in extending the time during which some step in procedure requires to be taken there must be some material upon which the court can exercise its discretion.”
Applications and relevant principles
Having regard to the matters to which I have referred:
(a) history of the proceedings
The proceedings have been extended, and difficult, principally because of the nature of the husband’s conduct of the proceedings. The husband claimed the wife had assets in [the foreign country] and went to enormous lengths to prove this, including several trips to [the foreign country]. However, the trial Judge was not satisfied the wife had more than modest assets in [the foreign country].
(b) conduct of the parties
It is the case the husband’s conduct led to the proceedings being extended and expensive. As a result, he has been ordered to pay a substantial contribution towards the wife’s costs, which is not an issue before me.
(c) nature of the litigation and the consequence for the parties of the grant or refusal of the application for extension of time.
The proceedings related to settlement of property pursuant to s 79 of the Family Law Act 1975 and whether the wife should be permitted to take the child of the parties to [the foreign country]. Unless leave is granted, the husband will have no other opportunity to challenge the orders of the trial Judge, other than through a s 79A application in relation to the property, and an application to vary the orders made as a result of changed circumstances in relation to the orders concerning the child. This may be open to him.
The husband’s position is that he may have to sell his home of many years to pay the sum owing to the wife pursuant to the judgment, and there is a risk his child may be taken to [the foreign country] and not returned. These are serious consequences.
The wife, understandably, seeks an end to the extended and expensive litigation.
(d) the prospects of success of the appeal
While it is inappropriate to examine in close detail the proposed grounds of appeal, the husband’s minimal grounds of appeal in relation to the property orders appear to be that he regards the prospects of an appeal are soundly based on legal precedent. In this regard, the husband relied on the decision in Pierce v Pierce (1999) FLC 92-844, saying “the Judge erred in her discretion and a more appropriate amount should have been 15% to the applicant for a marriage that lasted only four years and nine months, not 30%”. The husband further referred to the fact that the orders “are explicitly related to the selling of my home, the only home I have for my son and I, my home has been in my family’s name since 1949. I have personally owned this property since 1981”. He also points out that he did not leave the wife. The husband has been attempting to raise money to pay the amount due to the wife. He has filed an application for a stay of the orders which is listed for later this morning.
In relation to the children’s issues, the husband asserted that “the learned Judge erred in allowing the applicant to take our son to [the foreign country] given her connection to [the foreign country] and that [the foreign country] is not a signatory to the Hague Convention on Children. In particular, the Judge failed to consider the evidence that the applicant had stated that she would give our son, [A], to her sister in [the foreign country]”.
The matters to which I have referred are issues within the discretion of the trial Judge and there are difficulties to an appellant in establishing, on appeal, that such discretion has miscarried and the order is either manifestly excessive or outside the reasonable ambit of discretion as described in House v The King (1936) 55 CLR 499. While I do not accept the husband’s assertion that the decision of Pierce v Pierce (supra), supports the husband’s contentions, I accept the husband could possibly have reasonably arguable grounds on appeal.
(e) delay by the husband and explanation for the delay
The husband’s explanation in relation to the delay of about five weeks was short and to the point – “On Friday, 29 February 2008, I sought legal advice on the means of appealing the FC orders made on 23/01/2008. Mr Max Owens, my legal counsel, informed me that an appeal must be lodged within 28 days of the day the orders were given. As the orders made on 23/01/2008 required enforcement after 60 days, I assumed, incorrectly as it turns out; that I had 60 days in which to lodge an appeal. In any event I intended to appeal the orders made on 23/01/2008”.
It would appear that, by the time the husband sought advice about an appeal, he was already out of time. He then probably ignored, and possibly misconstrued, the advice given. There was no explanation as to why he did not take any action, even to seek advice, within the 28 day period.
(f) can hardship or injustice to the respondent be compensated by an order for costs?
While the parties have fairly modest assets, it is possible that any hardship or injustice to the respondent could be compensated by an order for costs.
Conclusions
The issue, in summary, is whether application of the rules will result in an injustice to the husband, which outweighs any prejudice to the wife if leave is granted.
I am not satisfied that this is a case where an extension of the time for filing the husband’s appeal should be granted. Although the time involved is not very lengthy, and the husband is self represented, he had the benefit of legal advice on which he did not act. He has been involved in extensive legal proceedings in many courts over the years and is quite experienced in litigation.
The proceedings have been very expensive and lengthy, largely as a result of the husband’s approach to them. The husband raised no specific challenges to the trial Judge’s judgment, other than the wife was to receive more than she is entitled to by way of settlement of property and that her Honour was wrong in the order relating to the child. In all the circumstances, I have concluded the application is to be dismissed.
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of the Honourable Court.
Associate:
Date: 5 May 2008
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